Last week, the ACLU and a number of other groups filed suit against the U.S. Patent and Trademark Office, Myriad Genetics, and the University of Utah Research Foundation to invalidate patents on human genes linked to breast and ovarian cancers. The lawsuits allege that the patents are invalid as violating the right to free speech under the First and Fourteenth Amendments to the Constitution.
As you might expect, the ACLU issued a number of statements to the press on the lawsuit:
“Knowledge about our own bodies and the ability to make decisions about our health care are some of our most personal and fundamental rights,” said ACLU Executive Director Anthony D. Romero. “The government should not be granting private entities control over something as personal and basic to who we are as our genes.”
“It is absolutely our intent that upon victory this will rend invalid patents on many other genes,” said Dan Ravicher, executive director of the Public Patent Foundation and a patent law professor at Yeshiva University’s Benjamin N. Cardozo School of Law. “We just had to pick one case as our case.”
The ACLU would have you believe that patents are being granted that cover the naturally occurring genes in the human body. This is obviously not the case because such patents would not be novel or non-obvious (human genes have been around for many years). Instead, the patents cover novel methods of detecting, screening, isolating such genes, and isolated, altered versions of the genes.
This means that the medical research that is being done to develop cures for diseases, such as breast and ovarian cancer, has led to many new discoveries for which patents have been granted. The ACLU lawsuit alleges that such patents stifle innovation and keep further research from proceeding. Most advocates of IP rights would argue, however, that such discoveries and cures would not be disclosed to the public without the patent grant. Indeed, such discoveries may not take place at all. Instead of stifling free speech, as the ACLU alleges, patents actually promote a public flow of information that would otherwise be kept secret by those making the discoveries (if they even make them at all).
Gene Quinn of IP Watchdog has an excellent analysis of the issues of the case including the complaint and the patents involved. He characterizes the suit as frivolous, which I agree with. He attributes this to a lack of understanding of patents on the part of the ACLU. In general, I do not agree with this part of his opinion. The Public Patent Foundation of the Benjamin Cardozo Law School is representing the plaintiffs in the case.
Instead, I believe that the purpose of the lawsuit is to misinform and inflame the public as to the issues of the case. This is yet another attempt to scare the public into believing that patents are bad and that patents on medical research are especially bad.
This is similar to the February 2007 New York Times editorial by the late Michael Crichton where he argued that people are going to die because the PTO is granting patents on human genes. Crichton argued that “one-fifth of the genes in your body are privately owned.” Medical research companies own not only your genes, but also the pathogens that lead to many common illnesses. Therefore, you can’t get treatment or testing for such illnesses unless you pay exorbitant royalties to the research company, if at all.
Like Crichton’s editorial, the ACLU seeks to get headlines from this suit. On that front, they are succeeding. It is highly unlikely that any of the patents in this suit will be invalidated and, if they are, it certainly won’t be because they are unconstitutional. Let’s tone down the inflammatory rhetoric on patents and try to educate the public on what they are actually all about.